MITCHELL v. TOWNSHIP OF WILLINGBORO MUNICIPALITY GOVERNMENT et al

Filing 5

OPINION. Signed by Judge Jerome B. Simandle on 7/26/11. (bdk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ROBERT MITCHELL,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil No. 11-1664 (JBS/JS)
v.
TOWNSHIP OF WILLINGBORO
MUNCIPALITY GOVERNMENT, et al.,

OPINION

Defendants.

APPEARANCES:
Robert Mitchell, Pro Se
1512 S. 58th Street
Apt. 2
Philadelphia, PA 19143
SIMANDLE, District Judge:

I.

INTRODUCTION
Plaintiff Robert Mitchell, proceeding without a

lawyer, seeks to bring this action in forma pauperis
pursuant to 28 U.S.C. § 1915, attempting to assert claims
for deprivation of constitutional rights under 42 U.S.C. §
1983 against the following Defendants in both their
individual and official capacities, as relevant: the
Township of Willingboro, the Township of Willingboro Police
Department, the Township Manager (who is unnamed in the
caption but identified in the Complaint as Joanne

Jennings), the Township Director of Public Safety (who is
unnamed in the caption but identified
in the Complaint as Gregory Rucker), the Township Police
Captain (who is unnamed in the caption but identified in the
Complaint as Donna C. Demetri), and the Township Police
Officer involved in the stop (who is unnamed in the caption
but identified in the Complaint as Officer Jeffrey Perez),
alleging violations of his constitutional rights.

Most of

Plaintiff's Complaint fails to state a claim upon which
relief can be granted, and so the Court will dismiss those
portions without prejudice to refiling an amended complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii).

Since the Complaint

does state a Fourth Amendment claim against Officer Perez
sufficient to survive this initial screening, the Court
will order the Complaint to be served upon Officer Perez.

II.

FACTUAL BACKGROUND
The following factual allegations are taken from

Plaintiff's Complaint and are accepted as true for purposes
of this review:
Plaintiff filed this action based on a police stop of
his vehicle that resulted in his arrest because of
outstanding warrants against him.

Plaintiff claims that

the officer stopping his vehicle lacked reasonable
suspicion for the stop, and that he was stopped because of
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racial profiling, describing himself as a "Black AfroAmerican Male Citizen."

Compl. 6B.

Specifically, Plaintiff alleges that on July 3, 2010
he was driving in the Township of Willingboro with his son
and son‟s girlfriend.

Id. at 6C.

They were in a green

1993 Honda Accord owned by Plaintiff's wife.

Id.

Plaintiff alleges that he did not speed or otherwise break
any traffic laws.

Id. at 6D, 6E.

Plaintiff alleges that

the officer who stopped him explained that he received a
911-dispatch call regarding a four-door, blue Honda Accord
with no rear license plate and, therefore, stopped
Plaintiff's car.

Id. at 6G.

Plaintiff notes that his two-

door Honda Accord is green and had a State of Pennsylvania
rear license plate.

Id.

Plaintiff did not have his driver's license with him,
and when the officer performed a warrant check, central
dispatch reported that outstanding warrants existed on
Plaintiff‟s record.

Id. at 6H.

Plaintiff was arrested and

brought to the Willingboro Township Police Department for
booking.

Id. at 6I.

Plaintiff was issued a ticket for

operating a motor vehicle on an expired driver's license.
Id.

Plaintiff claims the officer falsified the summons to

show the car as being blue instead of green.

Id.

Plaintiff alleges that there was no 911-dispatch call
to be on the lookout for a blue Honda Accord, and that the
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officer merely invented this pretext to cover up for a stop
based on racial profiling.

Id. at 6J.

Plaintiff brings

this suit against the municipality, the municipal police
department, the township manager, the director of public
safety, the police captain, and the municipal police
officer involved in the stop.

Id. at 4A-G.

As to Defendants other than the police officer,
Plaintiff alleges that Defendants have a policy of racial
profiling and racial discrimination and that they "failed
to order officer involved to attend a interview and hearing
to avoid a conflict of interest," without clarifying what
he means by that.

Id. at 4A–E; 6L.

Plaintiff characterizes his claim as a claim pursuant
to 42 U.S.C. § 1983 for violation of his First, Fourth, and
Fourteenth Amendment rights.

III.

Id. at 6N, 6O.

DISCUSSION
A.

Standard of Review

This Court is directed under § 1915(e)(2) to dismiss,
at the earliest practicable time, in forma pauperis actions
that are frivolous, malicious, fail to state a claim, or
seek monetary relief from a defendant who is immune from
such relief.

In determining the sufficiency of a pro se

complaint, the Court must be mindful to construe it
liberally in favor of the plaintiff.
4

Haines v. Kerner, 404

U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39,
42 (3d Cir. 1992).
The legal standard for dismissing a complaint for
failure to state a claim pursuant to § 1915(e)(2)(B) is
identical to the legal standard used when ruling on Fed. R.
Civ. P. 12(b)(6) motions.

Courteau v. United States, 287

F. App‟x 159, 162 (3d Cir. 2008) (not published); Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed.
R. Civ. P. 12(b)(6) standard to dismissal for failure to
state a claim under § 1915(e)(2)(B)).
The Court must accept all factual allegations in a
complaint as true and take them in the light most favorable
to a pro se plaintiff.

Phillips v. County of Allegheny,

515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551
U.S. 89, 93 (2007). In addition, where a plaintiff proceeds
pro se, his pleading is liberally construed and his
complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers."

Erickson v. Pardus, 551 U.S. at 94 (citations

omitted).

The Court is not required, however, to accept

“bald assertions” or “legal conclusions” pleaded in a pro
se complaint.

Morse v. Lower Merion School Dist., 132 F.3d

902, 306 (3d Cir. 1997).

5

Pursuant to Rule 8(a)(2), a complaint need only
contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”

Specific facts

are not required, and “the statement need only „give the
defendant fair notice of what the... claim is and the
grounds upon which it rests.‟” Ericson v. Pardus, 551 U.S.
89, 93 (2007) (citations omitted).

While a complaint is

not required to contain detailed factual allegations, the
plaintiff must provide the “grounds” of his “entitle[ment]
to relief”, which requires more than mere labels and
conclusions.
555 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Indeed, “a formulaic recitation of the

elements of a cause of action will not do.”

Id.; see also

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”).
Thus, a complaint may not survive dismissal where it
lacks sufficient factual matter, accepted as true, to
plausibly allege a cause of action.

Ashcroft v. Iqbal, __

U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
However, where a complaint subject to dismissal can be
remedied by amendment, plaintiffs should receive leave to
amend unless such amendment would be futile or prejudicial.
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
6

2002) (holding that Ҥ 1915(e)(2) did not alter our
preexisting rule that in forma pauperis plaintiffs who file
complaints subject to dismissal under Rule 12(b)(6) should
receive leave to amend unless amendment would be
inequitable or futile.”).
B.

Respondeat Superior and Municipal Liability

Local government units and supervisors are not liable
under § 1983 solely based on their supervisory role.

See

Monell v. New York City Department of Social Services, 436
U.S. 658, 690-91, 694 (1978); Natale v. Camden County
Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003);
see also Iqbal, 129 S.Ct. at 1949 (2009).

Rather,

liability requires the defendant to have personally
directed the wrongful conduct, or have actual knowledge and
acquiesced in the alleged wrongs.

Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988).
Plaintiff, apparently aware of this limitation,
contends that Defendants other than the officer making the
stop are liable because of a municipal policy of racial
profiling.

To establish municipal liability under § 1983,

"a plaintiff must show that an official who has the power
to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled
custom."
1990).

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
A custom is an act "that has not been formally
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approved by an appropriate decisionmaker," but that is "so
widespread as to have the force of law."

Bd. of County

Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
404 (1997).

A policymaker may be liable when "the

policymaker has failed to act affirmatively at all,
[though] the need to take some action to control the agents
of the government 'is so obvious, and the inadequacy of
existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably
be said to have been deliberately indifferent to the
need.'" Natale, 318 F.3d at 584 (footnote and citations
omitted).
Here, Plaintiff's allegations regarding municipal
liability or the liability of superior officers are
entirely conclusory.

Plaintiff has failed to allege any

facts (as distinct from general legal phrases or legal
conclusions) that suggest that the circumstances
surrounding his stop were the result of an official policy
or acquiescence in a well-settled custom, or that the
conduct of Officer Perez was ordered by, or even known to
any of the other Defendants.

Indeed, the only concrete

facts alleged by Plaintiff undermine his theory, as he
alleged that the Department of Public Safety has a policy
strictly prohibiting racial profiling.

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Accordingly, the

claims against all parties other than Defendant Perez will
be dismissed without prejudice.

C. Liability for Officer Perez
To state a claim under 42 U.S.C. § 1983, a plaintiff
must establish that the Defendant violated “a right secured
by the Constitution and the laws of the United States”
while acting under color of state law.

West v. Atkins, 487

U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d
1250, 1255-56 (3d Cir. 1994).

Plaintiff alleges, against

Officer Perez, constitutional violations arising under the
First, Fourth, and Fourteenth Amendments.
1.

First Amendment claim

Plaintiff first claims that Officer Perez‟s conduct
constituted a suppression of his First Amendment right to
free speech.
Plaintiff alleges that his right to free speech was
violated when Officer Perez “did not want to hear anything
Plaintiff had to say” regarding the validity of the vehicle
stop and possible ulterior motives behind the stop.
6-N.

Compl.

The Complaint appears to allege a violation on the

basis of Officer Perez‟s failure to listen to or “hear”
Plaintiff‟s arguments.

Plaintiff, however, did not have a

constitutionally protected right to demand Officer Perez
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listen to his concerns about the vehicle stop.

See

Minnesota State Bd. For Community Colleges v. Knight, 465
U.S. 271, 283 (1984) (holding that plaintiffs had “no
constitutional right to force the government to listen to
their views.”).

Indeed, “the First Amendment does not

impose any affirmative obligation on the government to
listen” or respond to one‟s exercise of First Amendment
rights.

Smith v. Arkansas State Highway Emp., Local 1315,

441 U.S. 463, 465 (1979).
Consequently, because Plaintiff has not pleaded facts
showing that Officer Perez‟s actions deprived him of a
constitutionally protected First Amendment right,
Plaintiff‟s First Amendment claim fails.
2.

Fourth Amendment claim

In addition to the First Amendment claim, Plaintiff
also alleges a Fourth Amendment violation arising out of
Officer Perez‟s stop of Plaintiff‟s vehicle.
The Fourth Amendment protects “against unreasonable
searches and seizures.”

U.S. CONST. amend. IV.

The

traffic stop of an automobile is “subject to the
constitutional imperative that it not be „unreasonable‟
under the circumstances.

As a general matter, the decision

to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has
occurred.”

Whren v. United States, 517 U.S. 806, 808
10

(1996).

Further, the Fourth Amendment permits an

investigatory stop by an officer pursuant to Terry v. Ohio,
392 U.S. 1 (1968) if the officer “has a reasonable,
articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
In this case, the Complaint alleges sufficient facts
to support a claim that the traffic stop was
constitutionally impermissible.

Plaintiff claims that the

stop was unreasonable, and therefore violative of the
Fourth Amendment, because Officer Perez had neither
probable cause nor reasonable suspicion to believe a
traffic infraction or other violation had occurred.
Indeed, Plaintiff alleges the officer‟s explanation for the
stop, that he had received a 911-dispatch call regarding a
four-door, blue Honda Accord, was pretextual.
6J.

Compl. at

In reality, Plaintiff claims, there was no dispatch

call to be on the lookout for a blue Honda Accord.

Id.

Even if the 911-dispatch call were real, Plaintiff
alleges that his vehicle, a green, two-door Honda Accord
with Pennsylvania license plates, did not match the
description of the blue, four-door Honda Accord with no
rear license plate apparently provided by the call.

Id. at

6G.
Without more information regarding the 911 dispatch,
it is not clear that the officer had reasonable suspicion.
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Consequently, the Complaint sufficiently pleads that
Officer Perez had neither probable cause to believe a
traffic violation had occurred nor reasonable suspicion
that Plaintiff was engaged in criminal activity, making the
stopping of the vehicle unreasonable under the Fourth
Amendment.
3.

Fourteenth Amendment claim

Plaintiff alleges that the true reason behind Officer
Perez‟s traffic stop, racial profiling, violates
Plaintiff‟s right to equal protection under the Fourteenth
Amendment.
In order to bring an equal protection claim based on
racial profiling under 42 U.S.C. 1983, Plaintiff must show
that the officer‟s conduct (1) had a discriminatory effect
and (2) was motivated by a discriminatory purpose.
v. U.S., 299 F.3d 197, 205-06 (3d Cir. 2002).

Bradley

To

demonstrate a discriminatory effect, Plaintiff must prove
that he “is a member of a protected class and that [he] was
treated differently from similarly situated individuals in
an unprotected class.”

Id. at 206.

As an African-American, Plaintiff is a member of a
protected class.

See, e.g., Waiters v. Hudson County

Correctional Center, Civ. No. 07-421, 2010 WL 1838468, at
*4 (D.N.J. May 05, 2010)(holding that because the plaintiff
was of African-American descent, she was a “member of a
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protected class by virtue of her race and of her
ancestry”).

However, mere invocation of the phrase “racial

profiling” without more, is simply a legal conclusion, not
a factual basis for a claim.

The Court must disregard such

legal conclusions and examine any facts alleged by
Plaintiff that would form a plausible factual basis for
that conclusion.

Iqbal, 129 S. Ct. at 1949.

The only

relevant factual allegations made by Plaintiff are that he
is black and he was stopped for an allegedly pretextual
reason.

Without more, this is an insufficient factual

basis for the claim, because there is nothing in the
pleadings to suggest that similarly-situated white drivers
are not subject to improper investigative stops, or that
this particular improper stop was a result of racial
targeting instead of, say, the tinted windows or out-ofstate plates on the car.

See, e.g., Pace Resources, Inc.

v. Shrewsbury Tp., 808 F.2d 1023, 1026 (3d Cir. 1987)
(holding that conclusory allegations regarding similarlysituated individuals are insufficient to state a claim);
Fisher v. Vassar College, 70 F.3d 1420, 1439 (2d Cir. 1995)
(noting that a plaintiff‟s “sense of being discriminated
against” is insufficient to demonstrate discrimination).
Hence, upon preliminary screening, the Court finds
that the Complaint states a claim under the Fourth
Amendment sufficient to survive this initial screening, but
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that Plaintiff‟s First and Fourteenth Amendment allegations
are insufficient and will be dismissed without prejudice.

IV.

CONCLUSION
For the reasons set forth above, the claims against

the Township of Willingboro, the Township of Willingboro
Police Department, the Township Manager, Joanne Jennings,
the Township Director of Public Safety, Gregory Rucker, and
the Township Police Captain, Donna C. Demetri, are
dismissed without prejudice, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), for failure to state a claim.
The Complaint does, however, state a Fourth Amendment
claim against Officer Jeffrey Perez sufficient to survive
this screening, and the Court will thus order the Complaint
to be served upon Officer Perez.
The accompanying Order will be entered.

July 26, 2011
Date

s/ Jerome B. Simandle
Jerome B. Simandle
U.S. District Judge

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